DUTIES OF DIRECTORS AND TRUSTEES
OF REGISTERED INVESTMENT COMPANIES
I.
GENERAL FIDUCIARY RESPONSIBILITIES OF INDEPENDENT FUND
DIRECTORS
A.
Introduction
The independent directors and trustees (“directors”) of registered management
investment companies are fiduciaries and, as such, owe each fund on whose board
they serve and its shareholders special responsibilities that come into play
whenever business decisions of significance to the fund and its shareholders are
made that call for a determination or review by the independent directors. These
responsibilities are derived from state law (common law and statute) and from
various provisions of the Investment Company Act of 1940 (“1940 Act”).
B.
Responsibilities Under State Law
Mutual funds, like other corporations and business trusts, are organized pursuant
to state, not federal, law. Accordingly, mutual fund directors, like the directors of
any corporation or business trust, owe the fund and its shareholders the fiduciary
duties of loyalty and care. Existing judicial and statutory formulations of these
duties are widely accepted and vary only slightly in their effect from state to state.
1.
Duty of Loyalty
The duty of loyalty mandates that directors avoid using their positions of
trust and confidence to further their private interests. Fundamental to the
duty of loyalty is the avoidance of self-dealing and conflicts of interest.
2.
Duty of Care
The duty of care imposed by section 2-405 of the Maryland Corporations
and Associations Code ("Maryland Code") is typical. The Maryland Code
imposes a general duty on directors (including independent fund directors)
to perform their duties in good faith, in a manner they reasonably believe
to be in the best interests of the corporation, and with that degree of care
which an ordinarily prudent person in a like position would exercise under
similar circumstances.
a.
If the director has greater skill than an ordinary person (if, for
example, he or she is a professional investment adviser or
attorney), the law requires that this greater skill be applied.
© Copyright K&L Gates LLP 2013. All rights reserved.
K&L Gates LLP
b.
C.
The duty of care requires that directors inform themselves
adequately on matters within their purview, apply their business
judgment to matters on which action by the directors is
appropriate, and reach reasonable decisions. Reasonable reliance
on others, including officers and employees of the corporation,
counsel, accountants and other experts, or committees of the board
of directors, generally is permissible.
Effect of the Business Judgment Rule
While the rhetorical formulation of the due care standard would appear to subject
directors to liability for acts of ordinary negligence (i.e., a lack of due care),
courts in practice are disinclined to substitute their judgment for that of the
corporate directors in the absence of bad faith, fraud, conflict of interest,
illegality, or gross negligence in the process by which their decisions are reached.
This judicial reluctance finds its expression in the "business judgment rule."1
1.
Presumption Favoring Directors
The business judgment rule provides a rebuttable presumption that, in
making a business decision, the directors acted on an informed basis, in
good faith, and in the honest belief that the action was taken in the best
interests of the company -- that is, a presumption that the directors have
not breached their duty of care.
2.
Elements of Defense
The presumption of the business judgment rule is invoked only if certain
threshold requirements are met.
a.
The rule has no applicability where directors have violated their
duty of loyalty, have abdicated their functions or, absent a
conscious decision, have simply failed to act. In other words, a
business judgment must actively have been reached.
1
In a number of important respects, trustees of business trusts are treated like directors of corporations. In
particular, trustees of business trusts are entitled to rely on and will be protected by the "business judgment rule." See
Evangelist v. Fidelity Management & Research, 554 F. Supp. 87 (D. Mass. 1982); Hasan v. Clevetrust Realty Investors,
548 F. Supp. 1146 (N.D. Ohio 1982). In these two cases, the first involving a mutual fund and the second a real estate
investment trust, federal courts applying the law of Massachusetts indicated that the business judgment rule is applicable
to decisions of trustees of a Massachusetts business trust.
–2–
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
b.
3.
In addition, the courts in recent years have begun to articulate more
explicitly another threshold requirement: that the directors'
decision must result from the exercise of their informed business
judgment. See Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984).
The importance of "process"
The effect of the foregoing formulation, in practical terms, is to render the
duty of care a duty to use appropriate care in the process of reaching a
business judgment. If procedures evidencing careful, fully informed
decision making by directors are followed, then liability will not attach
even if the business judgment itself proves to be incorrect.
D.
Responsibilities and Duties Under the 1940 Act
In addition to the due care and loyalty responsibilities under state law,
independent directors of funds have further fiduciary responsibilities under the
1940 Act.
1.
Requirement of Independent Directors
Section 10 of the 1940 Act specifically requires that 40% of the directors
of an investment company be independent of the adviser and underwriter
precisely because, in the case of mutual funds, Congress was unwilling to
rely only on the fiduciary duties that all corporate directors have under
state law.2
2
Where the fund is affiliated with its principal underwriter – a very common situation – a majority of the
board must be independent of the principal underwriter.
–3–
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
2.
Independence Requirements
In 2001, the Securities and Exchange Commission (“SEC”) amended
certain commonly-used exemptive rules3 to include additional
requirements for director independence. Under those amendments, funds
that wish to rely on any of the rules must (1) have a majority of
independent directors; (2) provide that candidates for the post of
independent director will be selected and nominated by the independent
directors; and (3) take steps to assure that any counsel to the independent
directors is “independent counsel.”4
In 2004, the SEC adopted a rule that required (1) boards to perform a selfassessment at least once annually; (2) independent directors to meet in
separate sessions at least once quarterly; and (3) independent directors to
be affirmatively authorized to hire their own staff.5 In 2006, a federal
appeals court suspended two other provisions of the rule—requiring that
boards have no less than 75% independent directors and an independent
chair—and sent it back to the SEC for further consideration of the
potential benefits of such a requirement.6 Although the SEC did conduct
some additional studies, the rule never reemerged.
3
Rule 10f-3 (permitting the purchase of securities during the existence of an underwriting syndicate of
which a fund affiliate is a member); Rule 12b-1 (permitting use of fund assets to pay distribution expenses); Rule
15a-4 (permitting the approval of interim advisory contracts without shareholder approval); Rule 17a-7 (permitting
securities transactions between a fund and certain affiliated persons of the fund); Rule 17a-8 (permitting mergers of
certain affiliated funds); Rule 17d-1(d)(7) (permitting funds to purchase joint liability insurance policies with
affiliates); Rule 17e-1 (addressing when funds may pay commissions to affiliated brokers); Rule 17g-1(j)
(permitting joint insured bonds); Rule 18f-3 (permitting funds to issue multiple classes of shares); and Rule 23c-3
(permitting closed-end funds to repurchase shares periodically from investors and thereby operate as interval funds).
The Commission said that it selected these rules because they involve inherent conflicts of interests between funds
and their affiliates and, therefore, require the independent scrutiny of independent directors.
4
Counsel is independent if the independent directors reasonably determine that any representation of the
fund’s adviser, principal underwriter, or administrator, or their control affiliates, by counsel or counsel’s firm during
the last two fiscal years of the fund is or was sufficiently limited that it is unlikely to adversely affect the
professional judgment of the person in providing legal representation. In adopting the rule, the SEC stressed that it
was not requiring independent directors to obtain separate counsel, nor was it imposing these independence
requirements on counsel to the fund.
5
6
Inv. Co. Act Rel. No. 26520 (Aug. 2, 2004).
U.S. Chamber of Commerce v. SEC (U.S. Ct. App. D.C. April 7, 2006).
–4–
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
In February 2010, new governance rules took effect.7 These rules require
disclosure of the board’s leadership structure, including:

whether the same person serves as both principal executive officer
and board chair;

whether the board chair is an “interested person” of the fund as
defined in Section 2(a)(19) of the 1940 Act;

if one person serves in both roles, or if the board chair is an
interested person, whether the registrant has a lead independent
director and what specific role the lead independent director plays
in the leadership of the board; and

why the registrant has determined that its leadership structure is
appropriate, given the specific characteristics or circumstances of
the registrant.
The new governance disclosure requirements have seemingly replaced
efforts to require an independent chair or the requirement for 75%
independent directors. Indeed, the Adopting Release, in discussing
companies in general, notes that “different leadership structures may be
suitable for different companies depending on factors such as the size of a
company, the nature of a company’s business, or internal control
considerations, among other things” – a statement seemingly inconsistent
with any attempt to impose a single governance structure on all
companies, even those within a single industry, such as investment
companies.
Separately, the Investment Company Institute (“ICI”) recommends that
independent directors constitute at least two-thirds of a board as a best
practice. In addition, the majority of investment companies have
voluntarily composed their boards with an independent chair and 75%
independent directors.
3.
Exemption from Board Composition Requirements
Rule 10e-1 temporarily suspends the board composition requirements of
the 1940 Act and the exemptive rules cited in note 3 if a fund fails to meet
those requirements because of the death, disqualification, or resignation of
a director. The requirements are suspended for 90 days if the vacancy can
7
SEC Rel. 33-9089 (Dec. 16, 2009).
–5–
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
be filled by the remaining directors and for 150 days if the fund must
obtain a shareholder vote to fill the vacancy.
4.
Independent Watchdog Function
The Supreme Court observed in Burks v. Lasker, 441 U.S. 471, 486
(1979): "[T]he structure and purpose of [the 1940 Act] indicate that
Congress entrusted to the independent directors of investment
companies ... the primary responsibility for looking after the interests of
the funds' shareholders."8 In recognition of this responsibility, court
decisions often refer to the independent directors as "independent
watchdogs" for the funds and their shareholders. See, e.g., Tannenbaum v.
Zeller, 552 F.2d 402, 406 (2d Cir.), cert. denied, 434 U.S. 934 (1977).
5.
Section 36(a) - Breach of Fiduciary Duty Involving Personal
Misconduct
a.
Section 36(a) authorizes the SEC to seek an injunction against any
person who serves as an "officer, director, member of any advisory
board, investment adviser, or depositor" or any underwriter, for
breaches of "fiduciary duty involving personal misconduct."
b.
The legislative history for this provision states that "your
committee does not intend to limit the Commission under this
section to situations where an actual intent to violate the law can be
shown or to acts of affirmative misconduct. In appropriate cases,
nonfeasance of duty or abdication of responsibility would
constitute a breach of fiduciary duty involving personal
misconduct." Senate Report No. 91-184 (91st Cong., 1st Sess.
(1970) at 36.3 [1970] U.S. Code Cong. 9 Admin. News, 4894 at
4931.
c.
The SEC has rarely used this provision to initiate action against the
directors of mutual funds. Moreover, case law indicates that a
well-qualified board of directors, which is not under the
domination of the fund's investment adviser, can be an effective
defense for an adviser in an action under section 36(a). See
8
In enacting Section 10, Congress concluded that mutual funds require greater independent oversight than other
corporations in light of the control exercised by the external adviser, the use of affiliated underwriters and broker-dealers,
and the conflicts of interest inherent in mutual fund organizations.
–6–
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
Tannenbaum v. Zeller, 552 F.2d 402 (2d Cir.), cert. denied, 98 S.
Ct. 421 (1977).
6.
Overall Responsibility
The Report of the Advisory Group on Best Practices for Fund Directors,
prepared under the auspices of the Investment Company Institute in early
1999, characterized fund directors’ responsibilities as follows:
Ultimately, the Advisory Group believes that the
fundamental responsibility of fund directors is to ensure
that the fund’s shareholders receive the benefits and
services to which they are fairly entitled, both as a
matter of law (e.g., resulting from the investment
adviser’s fiduciary duties to the fund and specific
requirements under the Act) and in accordance with
investor expectations reasonably created by the fund’s
prospectus and other disclosure documents. Within this
context, it is the responsibility of the fund’s board to
evaluate the performance of the fund’s investment
adviser and that of its other service providers on the
basis of what is best for shareholders and to apply that
same standard in evaluating any proposals for change in
fund operations or expenses. On those occasions where
the interests of the adviser and fund shareholders
diverge, the fund’s directors and, in particular, the
independent directors, must effectively represent the
interests of the fund and its shareholders.
7.
Specific Responsibilities
Central to the role of independent trustees as “watchdogs” are
their specific statutory obligations, which focus on oversight of
issues that are most likely to create conflicts between a fund
and its managing organizations? The obligations include:
a.
Annual approval of the advisory contract (Section
15(c)), discussed below.
b.
Annual approval of the principal underwriting contract
(Section 15(c)).
c.
Annual selection of the independent accountant (Section 32(a)(1)).
–7–
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
d.
Selection and nomination of persons to fill independent
director vacancies under certain circumstances (Section
16(b)).
e.
Determination of the “fair value” of certain portfolio
securities (Section 2(a)(41)).
In addition to these statutory obligations, the SEC has, through
regulation, imposed additional responsibilities on independent
directors (acting with the full board), including:
a.
Approval of any 12b-1 plan of distribution (Rule 12b1(b)(2)).
b.
Adoption of policies and procedures relating to
purchases from affiliated underwriter (Rule 10f-3(b)(1),
purchases and sales to affiliated funds (Rule 17a-7(e))
and brokerage transactions with affiliates (Rule 17e1(b)).
c.
Oversight of mergers with affiliated funds (Rule 17a8(a)).
d.
Review of joint fund insurance policies (Rule 17d1(d)(iii) and adequacy of fidelity bond for fund officers
and employees (Rule 17g-1(d)).
e.
Oversight of multi-class agreements (Rule 18f3(c)(1)(v)).
f.
Approval of compliance policies and procedures of the
funds and of the adviser, underwriter, administrator and
transfer agent, as well as approval of the designation
and compensation of the chief compliance officer of the
funds (Rule 38a-1).
In addition to the foregoing statutory and regulatory
obligations, the SEC frequently requires independent
directors to take certain actions periodically as a
condition to individual exemptions issued to fund
groups.
–8–
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
II.
FIDUCIARY RESPONSIBILITIES OF INDEPENDENT DIRECTORS IN THE
CONTEXT OF ADVISORY CONTRACT REVIEWS
A.
Requirement to Review the Advisory Contract
Section 15(c) of the 1940 Act requires the independent directors to review the
advisory contract at least annually. The directors are to request and evaluate, and
the adviser to provide, “such information as may reasonably be necessary to
evaluate the terms of” the advisory contract.
B.
The Gartenberg Case
Many actions brought against funds for excessive advisory fees have been settled
with relatively modest reductions in the fees payable by the funds. One case,
however, involving a large money market fund, was tried on the merits and
dismissed. See Gartenberg v. Merrill Lynch Asset Management, Inc., 528 F.
Supp. 1038 (S.D.N.Y. 1981), aff'd 694 F.2d 823 (2d Cir. 1982). Both the
District Court and the Court of Appeals decisions in Gartenberg are significant to
the mutual fund industry. Although the cases were brought under Section 36(b)9
of the 1940 Act, the court opinions focus considerable attention on the role of
independent directors in reviewing and renewing the advisory contract, and are
therefore taken as authoritative guidance for the role of independent directors
under Section 15(c).
1.
9
In Gartenberg and the cases that followed, the courts have hesitated to
disturb a fund’s fee structure where:
a.
the directors were individuals whose education and experience in
business affairs enabled them to address the issues at hand;
b.
the directors were fully informed of all facts and circumstances
relevant to their consideration;
c.
the directors were careful and conscientious in carrying out their
duties; and
d.
the directors were independent of management.
Section 36(b) imposes a fiduciary duty on a fund’s investment adviser as to receipt of compensation.
–9–
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
2.
The following observations of the Court of Appeals in Gartenberg are
worth noting:
a.
The court concluded that to be guilty of a violation of section
36(b) of the 1940 Act, an adviser must charge a fee that is so
disproportionately large that it bears no reasonable relationship to
the services rendered and could not have been the product of
arm’s-length bargaining. To make this determination, all
pertinent factors must be weighed.
b.
The court held that factors which may be important in fixing
advisory fees are the adviser's cost in providing the service, the
nature and quality of the services furnished by the adviser, and
the extent to which the adviser realizes economies of scale as the
fund grows larger.
c.
The court was not prepared to regard competitiveness in setting
advisory fees as the principal factor in determining the
appropriateness of advisory fees, although it did recognize that
"best industry practice," particularly with respect to reductions of
fees as a fund grows in size, is a factor to be taken into account.
d.
The court said that fall-out financial benefits to an adviser and its
affiliates must be considered.
e.
The court said that consideration should be given to any "float"
earnings realized by a distributor in connection with sales and
redemptions.
f.
In their arm’s-length negotiations with investment advisers,
independent directors should, among other matters, consider the
reasonableness of investment advisory fees in relation to the
adviser's profits derived from its investment and administrative
services. With regard to the profit questions, there are no specific
legal benchmarks established by case law or SEC Rules, nor is
there adequate comparative data. In Gartenberg, however, the
court said that profit margins ranging from a loss to a profit of
38.4% on an after-tax basis (depending on the methodology used)
"could hardly be labeled so excessive as to constitute a breach of
fiduciary duty." The matter is, therefore, one to be decided by
the exercise of reasonable business judgment in the interests of
fund shareholders and in the context of arm’s-length negotiation
with the adviser.
– 10 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
C.
The Gartenberg Factors and Subsequent Litigation
1.
2.
D.
Following Gartenberg, other courts and the SEC have amplified on the
legal standards governing the so-called “Gartenberg factors” that boards
should consider. The factors typically include:
a.
The nature and quality of the services provided.
b.
The extent to which economies of scale are reflected in the fee
schedule. Krinsk v. Fund Asset Management, Inc. 715 F. Supp.
472 (S.D.N.Y. 1988), aff’d, 875 F.2d 404 (2d Cir.), cert. denied,
493 U.S. 919 (1989).
c.
The evidence of any “fall-out” benefits to the adviser, i.e. indirect
profits to the adviser attributable in some way to the existence of
the fund. Krinsk, supra.
d.
A comparison of advisory fees and performance to those of similar
funds.
e.
The adviser’s costs incurred and profits realized for providing
services to the funds. Schuyt v. T. Rowe Price Prime Reserve
Fund, Inc., 663 F. Supp. 962 (S.D.N.Y.), aff’d, 835 F.2d 45 (2d
Cir. 1987), cert. denied, 485 U.S. 1034 (1988).
f.
The volume of transaction orders that must be processed by the
adviser.
The U.S. Court of Appeals for the Ninth Circuit has broadly endorsed the
power of independent fund directors to terminate the investment advisory
contract, provided they satisfy their fiduciary duties, notably the duties to
inform themselves and to exercise their judgment for the benefit of the
fund. Navellier v. Sletten, 262 F.3d 923 (9th Cir. 2001). The Ninth Circuit
affirmed the district court’s judgment, which held that directors who had
terminated an advisory contract and sought the services of a new adviser
had no liability to the fund, its shareholders, or the old adviser.
Jones V. Harris Associates and Gallus v. Ameriprise Financial, Inc.—Lower
Court Decisions
1.
While the courts had repeatedly reaffirmed the Gartenberg standard for
reviewing claims under Section 36(b), in May 2008, the U.S. Court of
– 11 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
Appeals for the Seventh Circuit, in Jones, et al. v. Harris Assoc. L.P., 10
sowed considerable uncertainty in the industry when it diverged from
Gartenberg and adopted a differing fiduciary duty standard in upholding the
dismissal of a Section 36(b) claim.
10
2.
In Jones, the Seventh Circuit noted that an adviser’s compensation may be
so high that a court could infer that deceit must have occurred, or that the
persons responsible for determining the level of the fee (i.e., the trustees)
abdicated their responsibility. The court then concluded that, other than
those (and presumably similar procedural) questions, there is no role for
the judiciary in the review of fees. The court focused on the market for
mutual funds and cited several recent studies showing that the market
structure is such that robust competition exists among funds so that
investors can seek out those investment companies with low fees. Finally,
the court rejected the notion that fees charged by investment advisers to
other institutional accounts are appropriate benchmarks for evaluating
mutual fund fees.
3.
In Gallus v. Ameriprise Financial, Inc., Case No. 07-2945, 2009 U.S. App.
LEXIS 7382 (8th Cir. 2009), the U.S. Court of Appeals for the Eighth
Circuit further deepened the circuit split in a decision that reversed a
district court decision that had granted an investment adviser’s motion for
summary judgment based on the Gartenberg factors. The appeals court
ruled that the district court erroneously rejected a comparison between the
fees the adviser charged to its institutional and mutual fund clients. It also
noted that, while the court in Gartenberg dismissed such fee comparisons
as unnecessary due to the dissimilarity of the money market mutual funds
and equity pension funds discussed in that case, it does not follow that
such a comparison is irrelevant where there is greater similarity between
the funds and other client accounts being compared. The Gallus court
stated that the district court should have determined whether the adviser
“purposefully omitted, disguised, or obfuscated information that it
presented to the Board about the fee discrepancy between different types
of clients.”
4.
The Gallus court’s decision specifically noted the Seventh Circuit’s ruling
in Jones. It stated that, while Gartenberg “demonstrates one way in which
a fund adviser can breach its fiduciary duty, it is not the only way” and
“Jones highlights a flaw in the way many courts have applied Gartenberg.”
2008 U.S. App. LEXIS 10804 (7th Cir. 2008).
– 12 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
The Gallus court concluded that “the proper approach to Section 36(b) is
one that looks to both the adviser’s conduct during negotiation and the end
result. . . . Unscrupulous behavior with respect to either can constitute a
breach of fiduciary duty.”
D.
Jones v. Harris Associates—Supreme Court Decision
2.
The uncertainty was resolved by the Supreme Court in Jones v. Harris
Associates L.P., 559 U.S. 335 (2010). The Court held in Jones that the
approach established by Gartenberg is “correct in its basic formulation: to
face liability under Section 36(b), an investment adviser must charge a fee
that is so disproportionately large that it bears no reasonable relationship
to the services rendered and could not have been the product of arm’s
length bargaining.”
3.
Adviser’s fiduciary duty in the context of Section 36(b) claims. Citing its
1939 decision in Pepper v. Litton, the Supreme Court stated that “the
essence of [whether a fiduciary duty has been violated] is whether or not
under all the circumstances the transaction carries the earmarks of an
arm’s length bargain.” The Court also stated that the 1940 Act “shifts the
burden of proof from the fiduciary to the party claiming breach,” thus
emphasizing that plaintiffs (and not advisers) continue to have the burden
of proof when asserting a Section 36(b) claim, as acknowledged in
Gartenberg.
4.
Role of comparative fees in reviewing Section 36(b) claims. The Court
reasoned that “[s]ince the [1940] Act requires consideration of all relevant
factors . . . we do not think that there can be any categorical rule regarding
the comparisons of the fees charged different types of clients. Instead,
courts may give such comparisons the weight that they merit in light of the
similarities and differences between the services that the clients in
question require.” The Court warned against “inapt comparisons,” noting
that:
[T]here may be significant differences between the services
provided by an investment adviser to a mutual fund and those it
provides to a pension fund which are attributable to the greater
frequency of shareholder redemptions in a mutual fund, the higher
turnover of mutual fund assets, the more burdensome regulatory
and legal obligations, and the higher marketing costs. If the
services rendered are sufficiently different that a comparison is not
probative, then courts must reject such a comparison. Even if the
services provided and the fees charged to an independent fund are
– 13 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
relevant, courts should be mindful that the [1940] Act does not
necessarily ensure fee parity between mutual funds and
institutional clients contrary to petitioners’ [plaintiffs’]
contentions.
E.
5.
Comparison of fees. The Court warned, as did the Gartenberg court,
against placing too much emphasis on a comparison of one fund’s
advisory fees against fees charged to other mutual funds by other
advisers. “These comparisons are problematic because these fees, like
those challenged, may not be the product of negotiations conducted at
arm’s length.” Moreover, the Court cited Gartenberg for the proposition
that “competition between . . . funds for shareholder business does not
support an inference that competition must therefore also exist between
[investment advisers] for fund business. The former may be vigorous
even though the latter is virtually non-existent.”
6.
Affirmation of the crucial role of informed and diligent fund directors in
overseeing fees and monitoring conflicts of interest. Citing its 1979
decision in Burks v. Lasker, the Court observed that “[u]nder the [1940]
Act, scrutiny of investment adviser compensation by a fully informed
mutual fund board is the ‘cornerstone of the . . . effort to control conflicts
of interest within mutual funds.’” The Court explained that a court’s
evaluation must take into account both procedure and substance, writing,
“Where a board’s process for negotiating and reviewing investmentadviser compensation is robust, a reviewing court should afford
commensurate deference to the outcome of the bargaining process. Thus,
if the disinterested directors considered the relevant factors, their decision
to approve a particular fee agreement is entitled to considerable weight,
even if a court might weigh the factors differently. . . . In contrast, where
the board’s process was deficient or the adviser withheld important
information, the court must take a more rigorous look at the outcome.”
The Court noted that “an adviser’s compliance or noncompliance with its
disclosure obligations is a factor that must be considered in calibrating
the degree of deference that is due a board’s decision to approve advisory
fees.”
Ongoing Litigation Based on Subadvisory Fees
On December 17, 2012, the United States District Court for the District of New
Jersey granted in part and denied in part a motion to dismiss an excessive fee suit
brought under Section 36(b) of the 1940 Act against Hartford Investment
Financial Services, LLC (“Hartford”). Accordingly, this case may proceed to
discovery and trial because of the District Court’s partial dismissal. The
– 14 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
plaintiffs’ complaint contained two claims for excessive fees, one pertaining to
investment management fees and one pertaining to distribution fees. The District
Court began its analysis with a discussion about the Supreme Court’s decision in
Jones v. Harris Associates L.P. In applying this standard, the District Court in the
Hartford case employed the multi-factor Gartenberg test.
The plaintiffs focused on the nature and quality of services provided to each fund
and its shareholders by detailing the investment management services Hartford
provides, the services the subadvisers provide to the funds, the overlap between
the two, and the differences between their fees for what the plaintiffs allege to be
for substantially the same services. To support their complaint, the plaintiffs used
information readily available from public sources, such as shareholder reports,
prospectuses, and investment advisory and sub-advisory contracts. The plaintiffs
alleged that the management fees Hartford charges six mutual funds are, on
average, three times the amount Hartford pays its subadvisers for similar services.
With regard to this Gartenberg factor, the District Court found that the plaintiffs
raised a plausible inference that Hartford’s fees are excessive under Section 36(b).
The plaintiffs also provided a comparison of Hartford’s management fees to those
of a similar Vanguard fund, noting that both advisers use the same subadviser to
manage their respective funds’ investments. The complaint alleges that, after the
subadviser’s fees are removed from total fees for both advisers, Hartford’s
management fees are on average three times Vanguard’s management fees. In
their comparison, the plaintiffs argue that the fees Vanguard actually charges for
oversight and administrative services are minimal, either nothing or one basis
point; whereas Hartford charges between 50 and 55 basis points for such services.
Hartford urged the District Court to reject this comparison, noting that Vanguard
is a not-for-profit entity that markets itself as a low-cost mutual fund provider.
The plaintiffs countered that argument by noting that both Hartford and Vanguard
use the same for-profit subadviser and that the “gross disparity in the fees
suggests a lack of arm’s length bargaining.” The District Court found that “since
Vanguard and [Hartford] employ the same subadviser, this comparison is more
apt than in the typical case ... while certainly not decisive, the Court gives some,
limited weight to this comparison.”
The District Court denied Hartford’s motion to dismiss the excessive management
fee claim and found “[i]n sum,…that while the standard under Jones and
Gartenberg is onerous, Plaintiffs’ 80-page Complaint alleges sufficient facts to
satisfy their burden at this early stage of the proceedings. Construing all of the
facts set forth above in Plaintiffs’ favor, a plausible inference arises that
[Hartford’s] management fees are so disproportionately large that they bear no
reasonable relationship to the services rendered and could not have been the
product of arm’s length bargaining.” The District Court granted Hartford’s
– 15 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
motion to dismiss the excessive distribution fee claim. The opinion notes that the
plaintiffs’ arguments with regard to the distribution fees were sparse and
conclusory. Similar litigation is pending against other fund groups based on
disparities in the adviser’s management fee and that of subadvisers.
F.
Disclosure Requirements Mandated by SEC
On June 23, 2004, the SEC adopted amendments that require funds to disclose to
investors the manner in which their boards of directors evaluate, approve and
recommend shareholder approval of investment advisory contracts. As a result of
these disclosure requirements, the board of directors must include the following
factors in its review of the investment advisory contracts: (1) the nature, extent,
and quality of the services to be provided by the investment adviser; (2) the
investment performance of the fund and the investment adviser; (3) the costs of
the services to be provided and profits to be realized by the investment adviser
and its affiliates from the relationship with the fund; (4) the extent to which
economies of scale would be realized as the fund grows; and (5) whether fee
levels reflect these economies of scale for the benefit of fund investors. These
specific factors largely mirror the factors cited in Gartenberg.
III.
FIDUCIARY RESPONSIBILITIES OF INDEPENDENT DIRECTORS IN THE
SPECIFIC CONTEXT OF A CHANGE OF CONTROL
A.
Introduction
Where there is a change in control of a fund's investment adviser, it is the
responsibility of the fund's independent directors to reach a business judgment as
to whether the new arrangement contemplated by the transaction, including the
proposed advisory contract, in the context of all the facts and circumstances, is in
the best interests of the fund and its shareholders.
B.
Active Involvement of Independent Counsel
The courts and the SEC both place heavy reliance on this factor. Independent
counsel should play an active, ongoing role in advising the independent directors,
which would include helping them to formulate requests for information,
communicating with counsel for other parties to the transaction and attending
meetings.
C.
Due Diligence -- Understanding the Transaction and Its Impact on Funds
and Their Shareholders
The overriding obligation of independent directors is to review and evaluate the
terms of new advisory agreements and, in connection therewith, the effects of any
– 16 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
change of control on each fund and its shareholders. To this end, the independent
directors should become fully informed respecting the underlying change of
control transaction, carefully assess the benefits, costs, and risks of the transaction
for the funds and other participants, and satisfy themselves that the change of
control will be consistent with the interests of the funds’ shareholders.
D.
The Processes Independent Directors Should Follow
The critical matter in assessing whether independent mutual fund directors
satisfactorily discharge their fiduciary responsibilities to the funds is whether they
exercise due care in reaching their decisions. The processes they follow should be
adequate to permit reasonable business judgments to be reached.
E.
Considerations of Alternative Management Arrangements
An issue that often arises in change of control situations is whether independent
directors have any duty to seek out or consider other management arrangements.
Based upon the legal authorities, the independent directors typically would have
no such responsibility so long as they are satisfied with the quality of the
proposed advisory services, find the terms of the new advisory agreements
acceptable, and conclude that the funds and their shareholders will continue to be
adequately served under the new arrangements. See Krieger v. Anderson, 182
A.2d 907 (Del. 1962).
IV.
LIMITATIONS ON LIABILITY OF DIRECTORS AND TRUSTEES
A.
Massachusetts Business Trusts
Massachusetts courts recognize that a trustee's liability generally may be limited if
a statement to that effect is included in the declaration of trust. The declaration of
trust of Massachusetts business trusts typically is written to protect its trustees
against liability to the fullest extent permitted by federal and state law. The
following provisions are standard:
1.
No trustee is liable for the act or omission of any other trustee or for any
neglect or wrongdoing of any officer, agent, employee, consultant, or
service provider of the trust.
2.
No trustee is liable for any act or omission in accordance with the advice
of counsel or other experts with respect to (i) his or her duties as a trustee
and (ii) the meaning and operation of the trust's declaration of trust.
3.
No trustee will be liable simply for failing to follow advice of counsel.
– 17 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
4.
B.
In discharging their duties, the trustees, when acting in good faith, are
entitled to rely on certain written information (e.g., the trust's books of
account and any written reports made to the trustees by any officer
appointed by them or any independent certified public accountant).
Maryland Corporations
A corporation's articles of incorporation also are typically written to protect the
directors against liability to the fullest extent permitted by federal and state law at
the time the articles were drafted.
C.
1.
Under the Maryland Code, a director will have no liability by reason of
being or having been a director of the corporation if the director performs
his or her duties in accordance with the standard of care set forth above.
"No liability" means liability for money damages as well as equitable
relief and includes liability to third parties as well as to the corporation
and its shareholders.
2.
Maryland permits a corporation to include in its charter a provision
limiting or eliminating a director's personal liability to the corporation or
its shareholders for money damages for certain breaches of the director's
duty of care, subject to specific exceptions. It is important to note,
however, that Maryland's limitation of liability provision appears to have
no protective effect unless a corporation's charter (either originally or by
an amendment thereto validly approved by the corporation's shareholders)
contains such a provision limiting or eliminating personal liability of
directors.
3.
The Maryland Code does not permit a corporation to limit or eliminate its
directors' personal liability (i) to any person or entity other than the
corporation or its shareholders, (ii) for claims for nonmonetary or
equitable relief such as rescission or injunction, or (iii) for violations of
the federal securities laws.
Delaware Statutory Trusts
1.
Delaware law provides that a trustee, when acting in such capacity, shall
not be personally liable to any person other than the trust or its
shareholders for any act, omission or obligation of the trust. Delaware law
also provides that the trustee’s liabilities may be expanded or restricted by
the trust’s governing instrument.
– 18 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
2.
D.
V.
The declaration of trust of a Delaware statutory trust typically is written to
provide that absent willful misfeasance, bad faith, gross negligence or
reckless disregard of the trustee’s duties, a trustee shall not be personally
liable to any person contracting with or having any claim against the trust
or a particular series. In addition, the declaration of trust typically provides
that a trustee shall not be liable to the trust or its shareholders so long as
the trustee has exercised reasonable care and acted under the reasonable
belief that his actions are in the best interest of the trust.
1940 Act Limitations
1.
Section 17(h) of the 1940 Act in effect establishes a minimum standard of
conduct for investment company directors. Section 17(h) requires that an
investment company's organizational documents and agreements not
contain any provision that "protects or purports to protect" any director
against liability to the investment company or its shareholders for "willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his [or her] office."
2.
As discussed below, the SEC staff has interpreted section 17(h) as a
substantive restriction on an investment company's ability to indemnify, as
well as to advance expenses to, its directors.
INDEMNIFICATION, ADVANCES AND INSURANCE
A.
Indemnification
1.
Massachusetts Business Trusts
a.
The indemnification and advancement provisions of the typical
Massachusetts business trust's declaration of trust are more
detailed than those provisions of the typical corporation's articles
of incorporation. This is because Massachusetts has not adopted
statutes that govern indemnification or advances by Massachusetts
business trusts.
b.
Under a typical declaration of trust, a trustee is generally required
to be indemnified in connection with any action, suit, or other
proceeding, in which the trustee was or is involved as a party, or to
which the trustee was or is threatened to be made a party, while in
office or thereafter, by reason of the fact that he or she was or is a
trustee. This obligation extends to all liabilities (e.g., amounts paid
in satisfaction of judgments, in compromise, or as fines and
– 19 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
penalties) and expenses (e.g., reasonable accountants' and
attorneys' fees) incurred by the trustee.
c.
2.
A Massachusetts business trust's organizational documents
typically will contain various exceptions. A trustee will not be
indemnified -(1)
When a court has made a final decision on the merits that
the director is liable by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of duties.
(2)
When either (a) a majority of a quorum of the directors
who are not defendants or (b) an independent legal counsel
in a written opinion has reasonably determined, based on a
review of the facts, that the director engaged in willful
misfeasance, bad faith, gross negligence, or reckless
disregard of duties.
(3)
When a court has made a final decision on the merits that
the director did not act in good faith in the reasonable belief
that his or her action was in, or at least was not opposed to,
the best interests of the trust.
Maryland Corporations
a.
Under a typical corporation's by-laws, any director who becomes
involved as a party in, or was or is threatened to be made a party
to, any claim, action, suit or proceeding, while in office or
thereafter, by reason of the fact that he or she was or is a director,
is required to be indemnified "to the fullest extent permitted by
law" against all expenses (e.g., attorneys' fees, costs, fines,
penalties, and amounts paid in satisfaction of judgments)
reasonably incurred by the director in connection with such a
proceeding and amounts incurred by the director in settlement of
such a proceeding.
b.
Under the Maryland Code, unless limited by its charter, a
Maryland corporation is required to indemnify a director who has
been successful, on the merits or otherwise, in the defense of any
proceeding to which the director is made a party by reason of his
or her service as a director. A corporation is required to indemnify
a director against all reasonable expenses (including attorneys’
fees) incurred by the director in connection with the proceeding.
– 20 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
3.
c.
In the event of a settlement, a director may not be indemnified
unless there has been a determination that the director did not act
with willful misfeasance, bad faith, gross negligence, or reckless
disregard of his or her duties. The determination must be made by
either (a) the court or other body approving the settlement; or (b) a
majority of the nonparty directors, or an independent legal counsel
in a written opinion, based on a review of readily available facts.
d.
The Maryland Code also provides that, unless ordered by a court, a
Maryland corporation may not indemnify a director against
(1)
Any judgment against the director in a shareholder
derivative suit or an action initiated by the corporation
itself, in which suit or action the director is adjudged to be
liable to the corporation; or
(2)
The expenses of any proceeding charging improper
personal benefit to the director, whether or not the
proceeding involves action in the director's official
capacity, in which proceeding the director is adjudged to be
liable on the basis that the director improperly received a
personal benefit.
Delaware Statutory Trusts
a.
Under Delaware law, a trust has the power to indemnify and hold
harmless any trustee from and against any and all claims and
demands. Such indemnification may be expanded or restricted by
the trust’s governing instrument. The absence of a provision of
indemnity in the trust’s governing instrument, however, shall not
be construed to deprive any trustee of any right to indemnity which
is otherwise available under the laws.
b.
The declaration of trust of a Delaware statutory trust typically
provides that a trustee shall be indemnified by the trust or the
appropriate series to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by
him in connection with the defense of any proceeding in which he
becomes involved by virtue of his being or having been a trustee
and against amounts paid or incurred by him in a settlement. Such
liability and expenses shall include, without limitation, attorney
fees, costs, judgments, amounts paid in settlement, fines, penalties
and other liabilities.
– 21 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
4.
c.
The declaration of trust typically provides that a trustee shall not
be indemnified if the court decides that the trustee is liable by
reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of his duties, or that the trustee has not acted in
good faith in the reasonable belief that his action was in the best
interest of the trust.
d.
In the event of a settlement, a trustee shall not be indemnified if
there has been a determination by any of the following that the
trustee engaged in willful misfeasance, bad faith, gross negligence
or reckless disregard of his duties:
(1)
The court or other body approving the settlement;
(2)
At least a majority of the trustees who are neither interested
persons of the trust nor parties to the matter; or
(3)
Written opinion of independent legal counsel based on a
review of readily available facts.
1940 Act Limitations
The SEC considers indemnification of directors in certain contexts to be
contrary to the provisions of the 1940 Act and the policy of the federal
securities laws. The SEC staff has interpreted section 17(h) of the 1940
Act as a substantive restriction on an investment company's ability to
indemnify its directors. The SEC staff has taken the position that an
indemnification provision is generally acceptable under section 17(h),
provided that
a.
It precludes indemnification for any liability arising from a
director's willful misfeasance, bad faith, gross negligence, or
reckless disregard of his or her duties; and
b.
It sets forth reasonable and fair means for determining whether
indemnification is permissible.
Such means would include a reasonable determination, based on a review
of the facts, that a director is entitled to indemnification by (i) a vote of a
majority of a quorum of nonparty directors or (ii) independent legal
counsel in a written opinion.
– 22 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
B.
Advancement of Expenses
1.
Corporation and Business Trust
An important issue for directors and trustees is whether a fund must pay a
director's legal and other expenses prior to a settlement or judgment. In
many cases, a director will not be able to carry on an adequate defense
unless expenses are advanced.
2.
a.
Because no judicial determination has been made, state law does
not provide for mandatory advancement. However, investment
companies can and generally do advance expenses. Advancement
can also be a major benefit of insurance coverage.
b.
A fund's organizational documents typically will provide that the
fund may advance a director his or her expenses to defend against
an action, suit, or other proceeding. A director's or trustee’s ability
to obtain advancements is subject to board discretion. Prior to
making an advance to a director or trustee, a fund must receive a
written undertaking by or on behalf of the director or trustee to
repay the amount if it is ultimately determined that the director or
trustee is not entitled to indemnification.
1940 Act Limitations
a.
The SEC staff has interpreted section 17(h) of the 1940 Act as a
substantive restriction on an investment company's ability to
advance expenses to its directors.
b.
The SEC staff has taken the position that an advancement
provision is generally acceptable under section 17(h), provided that
(1)
the director undertakes to repay the amount unless it is
ultimately determined that he or she is entitled to
indemnification (compare B.1.b. above; note that the
presumption has been reversed); and
(2)
at least one of the following additional conditions is
satisfied:
(a)
the director provides security for the undertaking;
(b)
the investment company is insured against loss
arising from unlawful advances; or
– 23 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
(c)
C.
a majority of a quorum of nonparty directors, or an
independent legal counsel in a written opinion,
determines, based on a review of the readily
available facts, that there is reason to believe that
the director ultimately will be found entitled to
indemnification.
Directors and Officers/Errors and Omissions Insurance
1.
Description of Insurance
A fund may protect itself and its directors, officers and employees from
certain liabilities and expenses arising from their acts or omissions in the
conduct of their duties.
2.
Provisions of Typical Policies
A typical policy includes the following provisions:
a.
Coverage for losses that a director becomes legally obligated to
pay by reason of any actual or alleged breach of duty, neglect,
error, misstatement, misleading statement, or other act or omission
committed in his capacity as director. The policies generally also
insure against costs and expenses incurred by a director in the
defense of any claim for which coverage is provided under the
policy.
b.
Exclusions from coverage for any director whose personal
dishonesty, fraudulent breach of trust, lack of good faith, or
intention to deceive or defraud has finally been adjudicated and
who fails to act prudently. The policies may also exclude losses
incurred from (a) claims arising out of acts committed prior to the
effective date of a fund; and (b) claims alleging that investments
made or recommended by an insured are improper by reason of the
fact that the insured (or an affiliate) is a market maker, sponsor,
issuer, or underwriter.
c.
Provisions in the policy may also exclude losses incurred from
claims (a) for personal injury, emotional distress, sickness, disease,
or death, for physical damage to property, or arising out of libel or
slander; (b) for obligations or responsibilities assumed by an
insured under certain contracts; (c) for fines, penalties, or punitive
or exemplary damages, except in jurisdictions where damages are
– 24 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
insurable; (d) caused by or contributed to by suspensions of
payment by banks, brokers, or dealers, or based upon the
insolvency of the fund; and (e) for an accounting of profits
allegedly made by a director.
d.
3.
These policies have typically excluded coverage for lawsuits
between two insured parties, as a way of protecting the insurers
against collusive lawsuits. In response to cases in which an
investment adviser to a fund sued the fund’s independent directors,
the SEC amended Rule 17d-1(d)(7) to permit joint policies only
where they provide coverage for such suits (see below). Even
before the new rule, several major insurers had modified their
policies to cover good faith suits between insured parties.
Rule 17d-1(d)(7) - Exemption from Prohibition Against Joint
Transactions
Rule 17d-1(a) of the 1940 Act requires the filing of an application for
exemption for any joint enterprise or arrangement between an investment
company and any affiliated persons. Rule 17d-1(d)(7), which applies to
directors and officers/errors and omissions insurance, exempts from this
requirement any arrangement regarding liability insurance other than the
fidelity bond required by Rule 17g-1, if:
a.
The investment company's participation in the joint liability
insurance policy is in the best interests of the investment company;
b.
The proposed premium to be allocated to the investment company,
based upon its proportionate share of the sum of premiums that
would have been paid if such insurance coverage had been
purchased separately by the parties, is fair and reasonable;
c.
The board of directors of the fund, including a majority of the
disinterested directors, determines no less frequently than annually
that the foregoing standards have been met; and
d.
The policy does not exclude coverage for good faith suits between
the investment adviser and the fund’s independent directors.
e.
The board of a fund must meet the independence requirements
described in Section I.D.2. of this chapter if the fund intends to
rely on this rule.
– 25 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
4.
Limits on Insurance Coverage
Claims involving bad faith, willful misfeasance, gross negligence, or
reckless disregard of duties of a director or officer generally are
uninsurable as a matter of law and policy.
VI.
CHANGING ROLE OF DIRECTORS
A.
Limiting Responsibilities of Directors for Operational Matters. In its 1992
Report on the 1940 Act, the SEC Staff concluded that:
“To the extent possible, operational matters that do not present a
conflict between the interests of advisers and the investment
companies they advise should be handled primarily or exclusively
by the investment adviser.” Division of Investment Management,
SEC, Investment Company Governance, Protecting Investors: A
Half Century of Investment Company Regulation (1992), at 266.
B.
SEC Actions Against Independent Directors
1.
Background
a. A review of federal administrative and case law has revealed that,
since the SEC was established in 1934, the SEC apparently has taken
formal action against independent directors in only a few public cases.
Although plaintiffs in civil litigation routinely name independent
directors, court decisions where independent directors were found by a
judge or jury to have violated their fiduciary duties under the federal
securities laws are extremely rare.
b. There are three common elements present in the three earliest cases.
First, the independent directors did not appear to be advised by
independent counsel. Second, there were serious violations of the
1940 Act by an affiliated adviser or underwriter. Third, although the
independent directors were aware of the violations, they neglected to
take appropriate steps to protect shareholders or correct the violations.
2.
SEC Actions Involving Independent Directors
a. Parnassus
(1)
In an administrative proceeding against independent trustees
of an investment company, the SEC staff charged that they
– 26 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
failed to value a security in good faith. In re Parnassus
Investments, Admin. Pro. File No. 3-9317 (1997).
(2)
The trustees of the fund, based on recommendations of its
adviser, had valued a particular security at 34.4 cents per share
for about two years. The valuation was lowered to 20 cents a
share and later to 15 cents. Ultimately, it was sold for 27 cents
per share.
(3)
In September 1998, an Administrative Law Judge (“ALJ”)
held that the fund had overstated its NAV in violation of Rule
22c-1 under the Investment Company Act, and that the fund’s
adviser and non-interested trustees aided and abetted the
fund’s violation. He found that the adviser and the trustees
did not use the appropriate “current sale” methodology to fair
value the fund’s holdings in the issuer because they initially
valued restricted securities at the same price as unrestricted
securities and then later applied a 10 percent premium with no
written documentation. As a result, the ALJ determined that
they did not fair value the holdings in good faith within the
meaning of Accounting Series Releases (“ASRs”) 113 and
118.
(4)
The ALJ refused to impose civil penalties against the fund’s
adviser or the trustees. He held that their actions involved
only violations of technical provisions, there was no harm to
others or unjust enrichment and the respondents had never
before been the subject of enforcement proceedings.
b. Monetta
(1) In 2000, an SEC administrative law judge (“ALJ”) ruled that
Russo, an independent Fund director, willfully violated the antifraud provisions of the 1933 and 1934 Acts when he knowingly
accepted IPO allocations from the Funds’ investment adviser
without disclosing this fact to the Funds and their investors.
According to the ALJ, the existence of favorable treatment from
the adviser in the director’s personal account and the failure to
disclose created a serious conflict of interest. In the Matter of
– 27 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
Monetta Financial Services, Initial Decisions Release No. 162
(Mar. 27, 2000).
(2) On further appeal, the Commission dismissed the charges against
the independent director for evidentiary reasons. The Commission
found insufficient evidence to support that the adviser had
accorded any special treatment to the director. Since the director
had participated in the transaction on the same terms as any person
not affiliated with the Fund could have obtained in an arm’s-length
transaction, the director’s failure to disclose the IPO allocations
was not actionable. In the Matter of Monetta Financial Services,
Securities Act Release No. 8239 (June 9, 2003).
c. Heartland
(1) The SEC sought a cease-and-desist proceeding against four
independent directors of Heartland Funds, alleging that they failed
to adequately assure that portfolio bonds were priced at fair value,
or to monitor and assure the bonds’ liquidity. The SEC also alleged
that the directors were a cause of the investment adviser’s violation
of Rule 22c-1(a) of the 1940 Act by permitting the adviser to sell,
redeem and repurchase fund shares at a price not based on the
Funds’ current NAVs. In the Matter of Jon D. Hammes, Securities
Act Release No. 8346 (Dec. 11, 2003).
(2) The SEC held it appropriate to institute cease-and-desist
proceedings against the directors. The SEC found that the directors
had expressly undertaken the duties to adequately monitor the
bonds’ liquidity and that they had failed to discharge their
responsibilities to participate meaningfully in the valuation of the
funds. Specifically, the SEC stated that while mutual fund directors
are permitted to delegate some responsibility for pricing a fund’s
securities to a separate pricing committee, each director retains
responsibility in the valuation process and may not passively rely
on securities valuation provided by such a committee. The
directors thus failed in their obligation to take adequate steps to
detect inaccuracies in the bonds’ valuation provided by a third
party pricing service and to follow up on such matter, when they
were on notice of the problems with the valuation.
(3) In addition, the SEC determined that the directors had failed to
expressly instruct the adviser to correct the prices of the Funds’
bonds, when they knew or should have known that those prices did
– 28 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
not reflect the bonds’ fair value, and consequently knew or should
have known that the adviser was violating Rule 22c-1(a).
d. Settlement of SEC Administrative Action Against, Among Others,
Trustees of Northern Lights Trusts Regarding Advisory Contract
Approvals
On May 2, 2013, the SEC issued an order initiating and settling an
administrative action against: the board members of two Northern
Lights registered investment companies (the “Trusts”), including the
four independent board members; Gemini Fund Services, LLC
(“GFS”), the Trusts’ administrator; and Northern Lights Compliance
Services, LLC, a GFS affiliate that provided chief compliance officer
services to the Trusts. The SEC order noted that Northern Lights is a
“turn-key” fund operation, in which a single five-member board was
serving funds run by numerous separate advisers, and that the board
had approved or renewed 113 advisory and 32 sub-advisory contracts
over a two year period.
Among other findings, the Commission determined that these parties
caused the Trusts to make untrue or misleading disclosures in public
shareholder reports and in the minutes of board meetings relating to
the factors considered and the conclusions reached by the board when
approving or renewing investment advisory contracts. Examples of
disclosures that the Commission found materially misleading included
the following:
Example 1: Certain disclosures stated that the board had received and
considered comparisons of advisory fees charged by comparable
mutual funds, whereas, in fact, such peer group data was not provided
to or considered by the board.
Example 2: Certain disclosures stated that the board, regarding a
decision to renew an advisory contract, “reviewed the Fund’s advisory
fees and overall expenses compared to a peer group of similarly
managed funds” and “concluded that the Fund’s advisory fee and
expense ratio were ‘acceptable in light of the quality of the services the
Fund expected to receive from the Adviser, and the level of fees paid
by funds in the peer group.’” [Emphasis added.] The SEC concluded
that these statements “were materially misleading since they implied
that the fund was paying fees that were not materially higher than the
middle of its peer group range when, in fact, the adviser’s approved
– 29 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
fee was materially higher than all of the fees of the adviser’s selected
peer group of 17 funds and nearly double the peer group’s mean fees.”
The SEC appeared to go out of its way to hold board members
responsible for this disclosure. The SEC found that the minutes of the
meeting at which the foregoing actions occurred were materially
misleading because they contained statements similar to those made in
public disclosures. The SEC noted that these minutes were initially
drafted by a paralegal, then reviewed by the Trusts’ outside counsel,
and finally approved by the board. The board members were thus
considered to have caused the disclosure violations (and the recordkeeping violations related to the underlying board minutes) because
they were aware that the minutes, as the official record of the
meetings, would form the basis for the public disclosures.
The SEC also determined that GFS, on ten occasions, failed to ensure
that certain shareholder reports included any of the required
disclosures relating to the Board’s advisory contract evaluation
process.
Finally, the SEC determined that the board members caused the Trusts
to fail to abide by compliance policies and procedures adopted by the
Trusts with respect to the approvals and renewals. Specifically, the
SEC found that the board had relied on the chief compliance officer’s
representations that advisers’ compliance programs were adequate
instead of personally reviewing required materials or a summary of the
program. As a result, the Commission concluded that the trustees had
caused the funds to violate Rule 38a-1, which requires funds to adopt
and implement policies and procedures reasonably designed to prevent
violations of the federal securities laws.
As sanctions, the SEC (1) issued cease and desist orders against each
respondent, (2) assessed a $50,000 fine against GFS, and (3) accepted
respondents’ undertakings to retain a compliance consultant to review
the relevant compliance activities, and to implement the consultants’
recommendations, subject to limited exceptions.
e. Settlement of SEC Administrative Proceeding Against Former
Directors of the Morgan Keegan Funds Regarding Valuation
Issues
On June 13, 2013, the SEC issued its Order in the case captioned In re
J. Kenneth Alderman, the administrative proceeding against the former
– 30 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
directors of certain investment companies managed and administered
by Morgan Keegan & Co. Inc. and its affiliates. The respondents in
Alderman settled the proceeding without admitting or denying any of
the allegations or the statements in the Order, other than the
Commission’s jurisdiction. While the Order is directed toward the
responsibilities of directors in connection with “fair valuation” of
securities in fund portfolios, it contains a number of points that are
significant for director liability and for fund governance generally.
When read in tandem with the recent Northern Lights case (discussed
above), it may also signal a new approach to enforcement using Rule
38a-1, the 1940 Act rule requiring funds to have policies and
procedures “reasonably designed to prevent violation of the Federal
Securities Laws,” as a means to take action against independent
directors in areas in which the 1940 Act has not historically imposed
direct liability.
Alderman arises from events during a five-month period in 2007. The
funds involved were both open- and closed-end fixed income funds
holding significant numbers of mortgage- and asset-backed securities
that had to be fair valued. While the Order does not mention it, this
was a period of unprecedented turmoil in the market for these
securities, and the pricing of mortgage-backed securities in general and
subprime mortgage-backed securities in particular was exceptionally
difficult.
The SEC found that during this period, the Funds did not have
adequate written policies and procedures as to valuation, which the
Commission found constituted a violation of Rule 38a-1. The Board
did not perform the valuation process itself, but delegated
responsibility to a valuation committee established by the adviser. The
procedures directed the committee to perform valuations using factors
identified in the Commission’s seminal guidance on valuation. The
board received reports from management and auditors, and reviewed a
“back testing report” comparing actual sales, when they occurred, to
the values previously used for the securities. The Order finds that
these measures were not adequate.
Apparently building off the Investment Company Act section
providing that “fair value” is to be determined “in good faith” by a
fund’s board of directors, the Commission appears to have adopted the
staff’s view that where a board delegates valuation authority, it must
be pursuant to detailed and prescriptive valuation procedures setting
out methodologies as part of the package of required fund compliance
– 31 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
procedures. (Note, however that the Order, coupled with other
pronouncements from the Commission staff, certainly leaves open the
ability of a board to approve the specific methodologies after the fact.)
Moreover, merely setting proper “methodologies” to be implemented
by a valuation committee still may not be enough. The Order quotes
an earlier case stating “[e]ach director retains responsibility to be
involved in the valuation process and may not passively rely on
securities valuations provided by such a [valuation] committee.” This
statement, coupled with the Order’s seeming dismissal of the
significance of input from outside experts and management, and the
absence of any reference to the role of the chief compliance officer,
suggests that even after setting “methodologies,” directors themselves
must engage directly to some degree in a thoughtful review of the
results, at least where a material portion of the portfolio is fair valued.
The Order offers little guidance on what would be appropriate
“methodologies,” other than stating that the general valuation factors
identified by the Commission itself in prior pronouncements are not
detailed or proscriptive enough. Nor does the Order provide specific
guidance on the degree of involvement or oversight to be required of
directors.
Given the attention and resources devoted to the case by the staff, the
findings concerning the actual violations are quite limited. The
directors were not found to have directly violated any provision of the
federal securities laws. There is no finding that they breached their
fiduciary duties to the Funds or acted intentionally, willfully or
recklessly. There is also no finding that the directors did not act “in
good faith.” Nor did the SEC find that the Funds’ net asset values were
at any time materially misstated or that there were any false and
misleading statements in any filings made by the Funds covering this
period. The SEC found instead that the Funds’ NAVs were
“inaccurate” during the period. The remedies did not include any bar
or monetary sanctions. The only remedy is an order that the former
independent directors, who have not been in the industry for over four
years, cease and desist from committing or causing any future
violations of Rule 38a-1, an otherwise unlikely occurrence under the
circumstances.
These factors, and the Order’s omission of a number of facts tending
to show the directors’ diligence during this difficult period, strongly
suggest that this case was a “message” case, a vehicle for the
Commission and its staff to put forth their views on valuation in a
– 32 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
manner that is otherwise free from the notice and comment provisions
of standard rulemaking.
Given the open questions, it remains to be seen what effect the
statements in Alderman may have on the Commission’s repeatedly
promised SEC valuation guidance, or indeed whether this will
supersede further work on that release. The staff has been meeting
with industry participants for the stated purpose of informing itself
about valuation practices and the issues faced by boards in performing
their responsibilities, but the Order seems to enshrine a view of
director responsibility long held by certain staff members, and it may
be difficult for any future guidance to differ from this view.
Alderman may be more significant for what it reveals about the
Commission’s view of director responsibilities generally, and its
ability to pursue directors for a wide variety of regulatory failures.
The Order reveals the SEC’s willingness to use Rule 38a-1, which
imposes obligations on funds to establish compliance programs, as a
tool to hold directors responsible for what the Commission perceives
as flaws in a fund’s compliance with at least some aspects of the
Investment Company Act. It should be noted, however, that the
compliance matters at issue in Alderman touched rather directly on the
substantive responsibilities of fund directors.
Perhaps more troubling, some in the industry are suggesting that a
board’s ability to have certain of its determinations protected by the
exercise of its informed business judgment may now be in question.
Decisions about the adequacy of compliance policies and procedures
made in good faith in accordance with a board’s duties of care and
loyalty may not be enough to protect directors from liability if the
Commission, with the benefit of hindsight, subsequently determines
those procedures are defective, or even could be improved.
C.
Lawsuits Questioning the Independence of Non-Interested Directors
1.
Most corporations treat as “independent” any director who is not
currently an officer, director or employee of that corporation.
2.
The 1940 Act contains a stricter standard for who may be considered
non-“interested,” a defined term.
a. Securities of the Adviser. An individual with direct or beneficial
interest in even one share of a security issued by the adviser
– 33 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
(including designations as trustee, executor or guardian of any estate
holding such securities, ownership by a spouse or member of the
trustee’s household, or ownership as a beneficiary of a trust which
owns the security) would be an interested director.
b. Relationship with the Fund, Adviser or Distributor. An individual
who is also an officer of the fund or an officer, director or employee
of the adviser or distributor will be an interested director of the fund.
c. Family Members. An individual will be deemed to be an interested
director if he or she is a member of the immediate family of an
officer, director or employee of the adviser, the distributor, their
affiliates or the fund. This covers a parent, child, spouse of a child,
spouse, brother or sister, including step and adoptive relationships.
d. Broker-Dealer. An individual who is a director, officer or employee
of any broker-dealer or who owns directly or indirectly 5 percent or
more of the outstanding voting securities of any broker-dealer would
be an interested director; provided, however, that such a director is
independent if, for the previous six months, no fund in the complex,
and no other account managed by the fund’s adviser, has made use of
that broker-dealer to execute trades, to effect principal transactions,
or to sell fund shares. This may mean that a person affiliated with a
rarely-used broker-dealer is interested at some times and independent
at other times. Indirect affiliations, such as may occur when an
individual is an officer of a company that has established a brokerdealer subsidiary, also may cause interested status and should be
considered very carefully.
e. Business Relationships with the Adviser or Distributor. The SEC
may deem a director to be interested if it finds that, during the fund’s
past two fiscal years, he or she has had a material business or
professional relationship with the fund’s adviser or distributor or any
of their affiliates or has had such a relationship with the principal
executive officers of the adviser, the distributor or the fund. Any
such determination is forward-looking only; its effect is not
retroactive.
3.
A 1997 decision of a federal District Court for the Southern District of
New York raised a serious issue with respect to the 1940 Act framework
for independent directors. Strougo v. Scudder, Stevens & Clark, Inc., 964
F. Supp. 783 (S.D.N.Y. 1997) (“Strougo”).
– 34 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
a. The judge held that only one of the “non-interested” directors was
independent for purposes of whether the plaintiff in a shareholder
derivative suit was required to first make a demand to the fund’s board
of directors before filing a complaint. The judge reached this
conclusion because all of the directors but one also served on the
boards of other related funds. Because of their relationships with the
other funds in the complex, the judge held that demand would be
futile.
b. The fund in this case added a new director who is not on any other
Scudder fund board. The fund’s board then established a committee of
the two “independent” directors not on any other board to consider a
demand by the plaintiff. The committee issued a report recommending
that the case be dismissed, and it was.
4.
D.
Since Strougo, no claim attacking director independence has been
successful in fund litigation. Moreover, in 1998 and 1999, the state laws of
Massachusetts, Maryland and Delaware were amended to specify that a
fund director who was “disinterested” for purposes of the 1940 Act also
would be considered as independent and disinterested for state corporate
law purposes.
Best Practices for Fund Directors
1.
Report of the ICI Advisory Group on Best Practices
a. In March 1999, the Investment Company Institute established an
Advisory Group to review and recommend best practices for
maintaining and enhancing the independence and effectiveness of fund
directors. The Advisory Group consisted of three independent
directors and three interested directors. They met with more than 30
experts in corporate governance of mutual funds, including fund
directors, attorneys, auditors, former SEC officials and independent
consultants.
b. The Advisory Group’s 1999 report contained 15 recommendations.
Principal among these are:
(1)
that at least two-thirds of the directors of each fund be
independent of management;
(2)
that former officers and directors of a fund’s investment
adviser and principal underwriter not serve as independent
– 35 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
directors of a fund. (Under current law, they could be
considered independent two years after terminating their
association with the adviser and underwriter);
(3)
that independent directors be selected and nominated by the
incumbent independent directors;
(4)
that independent directors be the ones to establish the level of
compensation for board service;
(5)
that independent directors have access to independent counsel
and other experts. (The Advisory Group believes that counsel
to the directors can also serve as fund counsel without
compromising its independence. However, any work that
counsel does for the adviser or its affiliates should be
considered carefully by the independent directors for its
possible bearing on the question of counsel’s independence);
(6)
that boards establish Audit Committees composed entirely of
independent directors, operating under a written charter; and
(7)
that independent directors meet separately from management
in connection with their consideration of the advisory and
underwriting contracts, and otherwise as they deem
appropriate.
c. In 2003, the Advisory Group recommended two additional best
practices:
(1)
Prohibiting “close family members” of employees of the fund,
its adviser or principal underwriter from serving as independent
directors; and
(2)
Implementing audit committee requirements similar to those
applicable to operating companies under Section 301 of the
Sarbanes-Oxley Act.
d. The Advisory Group’s recommendations are not mandatory.
However, it is recommended that the board of every fund, and
especially the independent directors, consider the applicability of each
of the 17 recommendations to its own situation, and document that it
has done so. Some of the recommendations have been subsumed in
– 36 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
the SEC’s rules on director independence, discussed in Section I.D.,
above.
2.
Mutual Fund Directors Forum
The Mutual Fund Directors Forum (“MFDF””), launched in 2002,
generally provides educational and outreach programs to independent
directors. In 2004, the MFDF prepared a report titled “Best Practices and
Practical Guidance for Mutual Fund Directors” in response to a request
from then SEC Chairman William H. Donaldson. The report contains 32
recommendations covering five areas of mutual fund governance and
operation.
3.
Independent Directors Council
The Independent Directors Council (“IDC”), launched in 2004, is an ICI
initiative that serves the mutual fund independent director community and
consists of a group of independent fund directors from a wide spectrum of
funds. The IDC has written various reports on topics, such as fair
valuation, director oversight of multiple funds, board self-assessments, the
independent chair requirements and soft dollars.
VII.
THE NEW REGULATORY LANDSCAPE
A.
Dodd-Frank Wall Street Reform and Consumer Protection Act
The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (“Act”)
is widely viewed as the most sweeping reform of financial regulation since the
Great Depression. Because the mutual fund industry was not widely implicated in
the recent financial crisis, little in the Act’s 2,300 plus pages applies directly to
registered investment companies, although several of its provisions have
implications for the investment management industry generally. The Act also
directs an unprecedented number of studies and reports to be performed by the
SEC, the GAO and other federal agencies, certain of which will have direct
impact on investment companies. In particular, the Act contains provisions for
two special studies to be conducted on investors’ financial literacy and mutual
fund advertising. The Act directs the SEC to conduct a study of the financial
literacy of retail investors, including to determine what information investors need
and methods to increase transparency for expenses and conflicts of interest. The
GAO is also directed to conduct a study on current marketing practices for the
sale of open-end investment company shares, the impact of such advertising on
consumers and recommendations (i) to improve investor protection in mutual
fund advertising and (ii) as to additional information that could assist investors to
make informed financial decisions when purchasing mutual funds shares.
– 37 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
B.
SEC Emphasis on Enforcement
It now appears clear that SEC Chair Mary Jo White intends to place primary
emphasis on the SEC’s enforcement role as opposed to its regulatory mission,
consistent with her background as a federal criminal prosecutor. Recently, she
announced the SEC’s intention, in certain enforcement cases, to make companies
and individuals admit wrongdoing as a condition of settling civil charges, or be
forced to go to trial. This is a departure from the SEC’s longstanding policy of
allowing companies and individuals to settle enforcement charges “without
admitting or denying” liability. Chair White said that the new policy will be
applied in “cases where . . . it’s very important to have that public
acknowledgment [of wrongdoing] and accountability.” She further noted that
decisions will be made on a case-by-case basis, but that the agency intends to
target cases of egregious intentional conduct or widespread harm to investors.
In one of the SEC’s first applications of this policy, an advisory firm and its
principal agreed to a settlement with the SEC that includes an admission of
wrongdoing. In the settlement papers, the principal admitted to multiple facts that
the SEC characterized as having “harmed investors and interfered with the normal
functioning of the securities markets,” including improperly borrowing over $113
million in fund assets to pay personal tax obligations at a time when the principal
had barred fund investors from making redemptions. The defendants also
admitted to providing favorable redemption and liquidity terms to certain fund
investors at the expense of other investors and engineering a “short squeeze” to
retaliate against a brokerage firm that had sold short a security in which his funds
held a significant position.
On September 26, 2013, at the Council of Institutional Investors fall conference,
Chair White also discussed the SEC’s intention of pursuing responsible
individuals, noting that there will be a shift from holding entities responsible first
to holding individuals responsible first and then working out to the entity level.
One possible remedy sought against individuals may be a bar from future
employment in the securities industry. She added that “[r]edress for wrongdoing
must never be seen as a ‘cost of doing business’ made good by cutting a corporate
check.”
Finally, in a speech on October 9, Chair White announced an enforcement
philosophy for the SEC based on the “broken windows” policing approach
developed in New York City. Under this approach, she suggested that the SEC
may bring an increasing number of enforcement actions based on technical and
even inadvertent violations of SEC rules as a means to deter more substantial
– 38 –
© Copyright K&L Gates LLP 2012. All rights reserved.
K&L Gates LLP
securities law violations and foster more stringent compliance cultures at
regulated firms.
– 39 –
© Copyright K&L Gates LLP 2012. All rights reserved.